19 Conn. App. 304 | Conn. App. Ct. | 1989
Two issues dominate this appeal from the trial court’s judgment revoking the defendant’s probation and imposing the sentence previously suspended. The first is whether the federal constitution mandates a remand to the trial court for a new probation revocation hearing because the information charging the defendant with a violation of a condition of his probation was at variance with the affidavit upon which the arrest warrant for a violation was based, and at variance with the evidence produced by the state in support of the violation. The second issue is whether the defendant was entitled to both a preliminary hearing and a final hearing when charged with a violation of a condition of probation. A ubiquitous backdrop to both issues is whether the issues should be reviewed under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).
The defendant pleaded guilty to manslaughter in the second degree on November 15, 1985, and was sentenced, pursuant to a plea agreement, to three years in prison, execution suspended after eighteen months,
The application for the arrest warrant was based upon an affidavit of the defendant’s probation officer. The application was also reviewed and signed by the chief probation officer. The affidavit stated that the special condition relating to community service had been modified by Corradino, J., on August 19,1987, and the affidavit contained twenty paragraphs of fact-specific allegations relating to the alleged violation of the modified condition of probation.
Thus, the information charged the defendant with a violation of the conditions imposed by Rottman, J., but the affidavit upon which the arrest warrant was based and signed asserted a violation of the modified condition as ordered by Corradino, J. The trial court, Geen, J., which conducted the revocation of probation hearing, stated that the issue was whether the defendant had performed six hours (per week) of community service, thus referring to the modified condition imposed by Corradino, J. The parties and the court conducted the hearing based on whether the defendant had or could have complied with the modified condition of probation as to community service.
The charge set forth in the information — a violation of an order of one court — was not the charge — a violation of an order of another court — upon which the hearing was based. The state does not deny that that is so, but argues that because the defendant did not contest the specificity of the information in the trial court, he
State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987), establishes a four part test for determining the reviewability of an Evans claim. The defendant has characterized his claim as one of due process, a violation of his constitutional rights, and has, therefore, passed the first prong of the Thurman test. The second question under Thurman is whether the defendant, as a probationer, has a constitutional claim based upon a limited review of the record. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1972), answers that question in the affirmative. A probationer has a minimal guarantee of due process; id., 782; and a limited review of the record reveals that the defendant’s claim is supported. Due process requires that a defendant be given notice of the specific charge against him or her. See State v. Steve, 208 Conn. 38, 47, 544 A.2d 1179 (1988). The claim is reviewable, therefore, and we review it to determine whether, in fact, there was any deprivation of a constitutional right.
We conclude that there was not a deprivation of a constitutional right because the defendant was not prejudiced by the variance between the information and the affidavit that supported the arrest warrant. See State v. Steve, supra; State v. Dahlgren, 200 Conn. 586, 597, 512 A.2d 906 (1986). The defendant’s conduct of his defense was based on the warrant and its accompanying affidavit, as was the state’s presentation of its case for the revocation of the defendant’s probation. The affidavit on which the warrant was based was extremely specific, and the hearing was held based on the allegations in the affidavit. The defendant, therefore, was not prejudiced by the lack of specificity in
The second issue that must be resolved is whether the due process clause of the fourteenth amendment to the United States constitution entitles the defendant to a preliminary probable cause hearing under the dictates of Gagnon v. Scarpelli, supra, and Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).
The state urges that we not consider that issue because the defendant did not raise it prior to or during the probation revocation hearing, and because it is not reviewable under State v. Evans, supra. Additionally, the state argues that although the claim was the subject of the denial of the defendant’s motion to open, that denial was not the subject of any amended appeal. The defendant’s position is that his motion to the trial court to open and set aside the judgment of probation revocation based upon the constitutional right allegedly accorded him under Gagnon, was sufficient to preserve his appellate rights. He also urges that because he raised the claim in his preliminary statement of issues filed with this appeal, he has preserved his appellate rights as to it. He argues, furthermore, that, in any case, the issue must be reviewed under Evans.
It is not necessary for us to decide whether the defendant’s failure to amend his appeal to request review of the denial of his motion to open the judgment based upon a constitutional claim, as opposed to an attempt to open a judgment to offer additional evidence; Freccia v. Martin, 163 Conn. 160, 302 A.2d 280 (1972); precludes him from now raising the issue on appeal. See also Brown v. Brown, 190 Conn. 345, 350, 460 A.2d 1287 (1983). The issue is reviewable because,
The next question that must be resolved is whether the defendant was, in fact, deprived of a constitutional right because of the failure of the trial court to conduct a preliminary hearing. We conclude that the procedure followed, which did not include a preliminary hearing to establish probable cause for a probation violation, gave the defendant the procedural due process rights to which he was entitled.
Since the cases of Gagnon v. Scarpelli, supra, and Morrissey v. Brewer, supra, were decided, the precise due process rights that should be accorded to probationers in Connecticut pursuant to the fourteenth amendment have not been clearly delineated. In this state there are statutes, rules of practice, and case law on the subject that are not entirely consistent.
The appellate courts have not yet determined whether, or under what conditions, statutes and rules of practice require both a preliminary hearing and a subsequent formal hearing to determine whether probation should be revoked because of the violation of a condition of probation.
The response to the issue requires an examination of Gagnon and Morrissey and their decisional donees, with an awareness of General Statutes § 53a-32 (a)
Legal commentators and scores of cases decided by state and federal courts have interpreted Morrissey and Gagnon as affording minimal due process rights to parolees and probationers that are less than the full scale rights afforded to defendants initially arrested for the commission of crimes. M. Nahari, “Due Process and Probation Revocation: The Written Statement Requirement,” 56 Ford. L. Rev. 759 (1988). “A strict interpretation of the Morrissey standards runs contrary to the spirit of flexibility with which the Supreme Court promulgated the Morrissey and Gagnon due process requirements.” Id., 773. “[D]ue process is flexible and calls for those procedural protections that the particular situation demands.” State v. Smith, 207 Conn. 152, 171, 540 A.2d 679 (1988). A revocation proceeding does not require all of the procedural components associated with an adversarial criminal proceeding. Id., 176. In
Three United States Supreme Court cases, decided since the 1972 decisions of Morrissey and Gagnon, have amplified what is meant by due process in a parolee or probationer revocation setting. The preliminary hearing described in Morrissey and Gagnon is not necessary if a parolee or probationer has already been imprisoned for another crime while on parole or probation. Moody v. Daggett, 429 U.S. 78, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976). The rationale for the holding is that the subsequent conviction is the equivalent of probable cause or reasonable ground to believe the parolee or probationer has violated a probation or parole condition and that the issuance of a warrant for the probation or parole violation did not cause the deprivation of the defendant’s liberty. Id., 87. “[I]n cases such as this, in which the parolee [or probationer] admits or has been convicted of an offense plainly constituting a parole violation, the only remaining inquiry is whether continued release is justified, notwithstanding the violation.” Id., 89; see also Nelson v. United States, 479 A.2d 340 (D.C. App. 1984); Smith v. United States, 474 A.2d 1271 (D.C. App. 1983). The teaching of these cases is that no preliminary hearing is necessary when the defendant is not being detained because of the probation violation. Id. This is also the case pursuant to Rule 32.1 (a) (1) of the federal rules of civil procedure. Fed. R. Civ. P., Notes of Advisory Commit
The purpose of the initial hearing as described in Gag-non is to determine as quickly as possible whether there is probable cause to believe acts have been committed that violated a probation condition, so that the conditional liberty of a defendant is not terminated without such cause. The purpose of the final hearing is to make the ultimate conclusion of whether or not there has been a violation and, if so, whether probation should be terminated, modified or continued. There is no violation of due process rights if these purposes are satisfied and there is no detention of the probationer.
In 1985, Black v. Romano, 471 U.S. 606, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985), was decided. A unanimous court held that due process did not require a trial court to indicate that it considered alternatives to incarceration before revoking probation. The significance of the case is in its discussion of Morrissey and Gag-non. Black makes it clear that those cases outline procedural guarantees only, and do not intrude into the substantive grounds for revocation of probation. There should be no “imposition of rigid requirements that would threaten the informal nature of probation revocation proceedings or interfere with exercise of discretion by the sentencing authority.” Id., 611. “[0]ur-precedents have sought to preserve the flexible informal nature of the revocation hearing, which does not require the full panoply of procedural safeguards associated with a criminal trial.” Id., 613, citing Morrissey v. Brewer, supra, 489-90.
It is unclear whether the United States Supreme Court was simply following Moody when it found probable cause arising from the second arrest itself, or whether a preliminary probable cause hearing was unnecessary because the defendant had not been deprived of his liberty, or whether the particularized statement of the violation in the trial court’s show cause order obviated the necessity for a preliminary hearing. At least one court has concluded that the latter is true.
There is compliance in every major respect with Morrissey, Gagnon and Black when the trial court’s order
The third United States Supreme Court case affecting Gagnon and Morrissey is Griffins. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). It casts doubt on the necessity for a mandatory preliminary hearing in probation revocation hearings.
In this area of the procedural due process to be accorded probationers accused of violating a condition or conditions of their probation, the United States Supreme Court has moved from minimum requirements to bare minimum requirements, as evidenced by its evolution from Gagnon to Griffin. The decisions in Connecticut during the same time span, 1972 to the present, are reflective of the United States Supreme Court decisions.
State v. Roberson, 165 Conn. 73, 327 A.2d 556 (1973), established that an appellate court’s review of an order revoking probation is based on whether the trial court abused its discretion. If the trial court was reasonably satisfied that the terms of probation had been violated and that the beneficial purposes of probation were no longer being served, the judgment of revocation should be upheld. Roberson was decided after Morrissey and cites it. The underlying violation in Roberson was the
The only published Connecticut criminal case in which the subject of a preliminary probation revocation hearing was discussed is State v. White, 169 Conn. 223, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975).
Although some Connecticut cases on the subject of the requirements of due process for probation revocation hearings since State v. White, supra, have cited Morrissey, Gagnon, Black or Griffin, they have not required a preliminary hearing. Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988); Gentry v. Warden, 167 Conn. 639, 356 A.2d 902 (1975); State v. Johnston, 17 Conn. App. 226, 551 A.2d 1264 (1988); State v. Roman, 13 Conn. App. 638, 538 A.2d 1076 (1988); State v. Navikaukas, 12 Conn. App. 679, 533 A.2d 1214 (1987), cert. denied, 207 Conn. 804, 540 A.2d 74 (1988); State v. Cooley, 3 Conn. App. 410, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1240 (1985). Other Connecticut cases do not cite any United States Supreme Court cases, limiting their discussions to General Statutes §§ 53a-30 or 53a-32, and then finding that a trial court did not err in revoking probation after one hearing. State v. Pecoraro, 196 Conn. 305, 493 A.2d 180 (1985); State v. D ’Ambrosia, 195 Conn. 461, 488 A.2d 822 (1985); State v. Toler, 192 Conn. 321, 471 A.2d 643 (1984); State v. Johnson, 11 Conn. App. 251, 527 A.2d 250 (1987).
We conclude that, consistent with the United States constitution, there are instances in which the preliminary hearing of Gagnon is superfluous. The present case
The defendant was not deprived of a right arising from the fourteenth amendment to the United States constitution or from a Connecticut statute or rule of practice.
Most of the defendant’s remaining claims of error are subject to a summary disposition.
He claims error in the trial court’s refusal to allow the sentencing judge to testify that 100 hours, instead of 1000 hours, of community service was intended as an original condition of probation. The trial court rightly concluded that this testimony was irrelevant to the issue of the revocation hearing, namely, whether the defendant had performed six hours per week of
Another of the defendant’s claims is that there can be no violation of a condition of probation unless the violation was willful. Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), recognized that in the situation of the failure of an indigent defendant to pay a fine or restitution, revocation of probation cannot be automatic. There must be a finding in such a situation that the defendant did disobey wilfully the condition imposed by the court. The holding of Bearden, however, does not prohibit a revocation of probation in other contexts even if the failure to obey a condition of probation is not found to be intentional or willful. Black v. Romano, supra, 611. Although a finding of a violation of a condition of probation should not lead to a rote revocation of probation; State v. Cooley, supra, 414; there is no constitutional requirement, except in the circumstance of Bearden, that the trial court must first find that the violation was willful, before probation may be revoked.
The rest of the defendant’s claims of error relate to the trial court’s rulings on evidence, its reliance on the testimony of the defendant’s probation officer, the court’s failure to make specific findings that the purposes of the defendant’s probation were no longer being served, and the alleged bias of the trial court.
Hearsay evidence is admissible into evidence at a probation revocation hearing at the discretion of the court, if it is relevant, reliable and probative. Gagnon v. Scarpelli, supra, 789; Morrissey v. Brewer, supra, 499; State v. White, 169 Conn. 223, 239-40, 363 A.2d 143 (1975). It was within the trial court’s discretion to determine
The primary purpose of a probation revocation proceeding is to determine whether the defendant is complying with the terms of his probation. Payne v. Robinson, supra, 571. Appellate review “distills to a review of the reasonableness of two findings,” whether there was a violation of a condition of probation, and whether probation should be revoked because its rehabilitative purposes are no longer being served. State v. Navikaukas, supra, 682. Under the facts of this case, the court impliedly found that the beneficial purposes of probation were no longer being served without making specific findings. See id. Both of the ultimate findings of the court, that there was a violation of a condition of probation and that probation should be revoked, were reasonable and the court need not have made specific subsidiary findings of fact.
The defendant’s claim of judicial bias was not preserved. No motion was made to disqualify the court, and there are no facts, and no indication from the record, from which we can conclude, that the trial court was not impartial. See Dubaldo v. Dubaldo, 14 Conn. App. 645, 542 A.2d 750 (1988).
There is no error.
In this opinion the other judges concurred.
The charge of manslaughter in the second degree stemmed from a motor vehicle accident that resulted in the death of a young woman and that was allegedly caused by the defendant’s driving at an excessive speed.
None of the standard conditions of probation is at issue in this case.
In an affidavit dated July 17,1988, the sentencing court, Rottman, J., stated that on November 15, 1985, he was a judge of the Superior Court and that the special condition of probation was intended to be 100 hours of community service.
“Vop” presumably means violation of probation.
A second motion for modification was filed by the defendant, but the court, Corradino, J., declined to act on it because the hearing which is the subject of this appeal was pending before Gem, J.
General Statutes § 53a-32 (a) provides in relevant part: “At any time during the period of probation . , . the court . . . may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation .... or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. . . . Any probation officer may arrest any defendant on probation
Practice Book § 943 provides: “proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of his probation . . . or by a written notice to appear to answer to the charge of such violation, which notice, signed by a judge of the superior court, shall be personally served upon the defendant by a probation officer and contain a statement of the alleged violation. All proceedings thereafter shall be in accordance with the provisions of Secs. 634 and 660. At the revocation hearing, the prosecuting authority and the defendant may offer evidence and cross-examine witnesses. If the defendant admits the violation or the judicial authority finds from the evidence that he committed the violation, the judicial authority may make any disposition authorized by law.”
Practice Book §§ 634 and 660 relate to arraignment and the conditions governing release of defendants. Probationers, after arrest, are thus given by § 943 all of the rights accorded other persons initially charged with a crime.
We are aware that General Statutes § 53a-32 (a) provides for the initiation of probation revocation proceedings by a probation officer or his deputy. The present case is not concerned, on its facts, with such an initiation, and we need not comment on the constitutionality of such a procedure. Practice Book § 943, however, does not provide for the initiation of proceedings to revoke probation by a nonjudicial officer, except if the revocation is based upon a conviction for a new offense. There are disparities between the rule and the statute that need not be reconciled for the purposes of this opinion. See State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974).
The holding of the case is unrelated to whether a preliminary hearing is required, and relates, instead, to whether a search warrant must be obtained before searching a probationer’s home.
Lee v. Board of Education, 181 Conn. 69, 78, 434 A.2d 333 (1980), which was not a criminal case, states, in dicta, that a parolee’s freedom may only be revoked, consistent with the due process clause of the fourteenth amendment of the federal constitution, upon a preliminary determination of probable cause, followed by a later hearing conducted with specific procedural guarantees of due process to determine whether revocation should occur.
The trial court found that because Connecticut had not yet adopted a procedure to be followed in accordance with Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1972), a preliminary and a final probation revocation hearing should be held. It also found that General Statutes § 53a-32 (a) requires only one hearing at which the defendant is entitled to be informed of the manner in which he is alleged to have violated the condition, to be represented by counsel, to cross-examine witnesses and to give evidence. Records and Briefs, Findings 24 and 110.
State v. White held that General Statutes §§ 52-146d through 52-146j, the statutory psychiatrist-patient privilege, do not prevent the use of knowledge obtained thereby from being available to the court in a probation revocation hearing, that failure to deliver standard conditions of probation to the defendant did not render the probation invalid on the particular facts of the case, that it was not error to introduce hearsay at the preliminary hearing or at the final hearing, and that there was no denial of due process although the defendant had no counsel at the preliminary hearing.
We need not decide whether probationers who are held in custody solely for an alleged violation of a condition of probation and who do not receive a speedy hearing on the revocation of probation are constitutionally entitled to a preliminary hearing.